Belarusian Bar and International Cooperation: Are there any Opportunities?
Published on July 27, 2022
Recently, a congress of lawyers dedicated to the centenary of the formation of the Bar was held in Belarus. The congress adopted the concept of the development of the Bar until 2030, and made a number of statements about the future of the Bar. Among other things, the plans were announced as to the creation of a Center for International Cooperation, aimed at “improving the efficiency of work in the field of international cooperation”. The Belarusian legal profession plans to search for contacts with law schools abroad, exchange of specialists, internships, conferences. But, as the trends of the last two years show, the international cooperation of the Belarusian legal profession in the existing conditions is geographically very limited and constrained to several countries east of Belarus. In the current material, we are to analyze what Belarus and Kosovo have in common, what Ukrainian lawyers do with police vans, as well as try to estimate chances of successful implementation of aspirations of the Belarusian Bar.
Always go to other people's funerals; otherwise they won't go to yours.
Clarence Day
How the geography of the “friendship” of the Belarusian Bar has changed for its 90th and 100th anniversary.
International relations with foreign partners of the Belarusian Bar began to collapse back in 2010: then the crackdowns against attorneys who defended opposition candidates in the 2010 elections* affected the image of advocates’ self-regulatory bodies within the Belarusian Bar. Despite this, some contacts have still been maintained –– perhaps, there was a conviction that interaction with lawyers based on the generally recognized principles of the work of the Bar would have a beneficial effect on Belarusian professionals.
*The link leads to the article devoted to post-electoral crackdowns (written in Russian).
Thus, the 90th anniversary of the Belarusian Bar in 2012 was marked by the organization of the international conference “The Belarusian Bar is 90 years” with lawyers invited from Russia, Ukraine and Lithuania, employees of the Court of the Eurasian Economic Community, as well as the Economic Court of the Commonwealth of Independent States. At that time, Russian lawyers enthusiastically noted the introduction of new organizational forms of advocacy in the form of law firms. A member of the Council of the National Bar Association of Lithuania Evgenia Sutkiene called the Belarusian law on the Bar “pretty European”.
No international conference was held in 2022. Guests from Lithuania, Ukraine and other European countries also did not attend the events dedicated to the centennial anniversary. One of the main events was... a football match dedicated to the centenary of the “day of the formation of the Belarusian Bar”, in which the team of the Belarusian National Bar Association (BNBA) took part.
The only hint of international cooperation was seen in the Belarusian lawyers present at the Congress, among whom were representatives of the Presidential Administration, the Ministry of Justice, the House of Representatives of the National Assembly, the Belarusian Union of Lawyers, the Supreme Court, the Investigative Committee, the Belarusian Notary Chamber, as well as several representatives of the legal entities of Russia, Azerbaijan and Uzbekistan. As can be seen, the geography of the countries represented has shifted from Western European countries to the states of Central Asia.
*The link leads to the article devoted to post-electoral crackdowns (written in Russian).
Thus, the 90th anniversary of the Belarusian Bar in 2012 was marked by the organization of the international conference “The Belarusian Bar is 90 years” with lawyers invited from Russia, Ukraine and Lithuania, employees of the Court of the Eurasian Economic Community, as well as the Economic Court of the Commonwealth of Independent States. At that time, Russian lawyers enthusiastically noted the introduction of new organizational forms of advocacy in the form of law firms. A member of the Council of the National Bar Association of Lithuania Evgenia Sutkiene called the Belarusian law on the Bar “pretty European”.
No international conference was held in 2022. Guests from Lithuania, Ukraine and other European countries also did not attend the events dedicated to the centennial anniversary. One of the main events was... a football match dedicated to the centenary of the “day of the formation of the Belarusian Bar”, in which the team of the Belarusian National Bar Association (BNBA) took part.
The only hint of international cooperation was seen in the Belarusian lawyers present at the Congress, among whom were representatives of the Presidential Administration, the Ministry of Justice, the House of Representatives of the National Assembly, the Belarusian Union of Lawyers, the Supreme Court, the Investigative Committee, the Belarusian Notary Chamber, as well as several representatives of the legal entities of Russia, Azerbaijan and Uzbekistan. As can be seen, the geography of the countries represented has shifted from Western European countries to the states of Central Asia.
Membership in international bar associations
What is the situation like as to membership in internationally recognized bar associations?
The Council of Bars and Law Societies of Europe (CCBE)
It is enough to take a look at the map presented on the official website of the Council of Bars and Law Societies of Europe (CCBE). Full members are marked in dark blue, affiliate ones are marked in blue. Associate members are orange and observer members are light orange.
The white spots on the map among the colored states are Belarus and the partially recognized Republic of Kosovo. And the fact that Kosovo has a much greater chance of getting membership in the CCBE than Belarus, due to participation in other international bar associations and the presence of legislation on the bar, which is not perfect, but meets international standards of the independence of the bar much better than the Belarusian one. The Ministry of Justice does not appoint every candidate for the position of an assistant lawyer there, not to mention the advocates’ self-regulatory bodies. The Government is mentioned in Kosovo’s Law on the Bar, but only in the context of exercising the function of supervising the legality of the basic acts of the Kosovo Bar (KB); it is separately emphasized that such supervision is limited to compliance with the law and legislation, without violating administrative autonomy of the KB. The law prescribes the authority of the Ministry of Justice to monitor the functioning of the Bar and its working conditions, but at the same time, the Ministry of Justice is accountable to the Bar and is obliged to provide information and other data requested by it at short notice, taking into account the independence of the bar.
The KB joined the International Bar Association (IBA) back in 2009. The American Bar Association (ABA) initiative to promote the rule of law in Kosovo works in the field of legal education and civil education reform, as well as the reform of the legal profession.
The white spots on the map among the colored states are Belarus and the partially recognized Republic of Kosovo. And the fact that Kosovo has a much greater chance of getting membership in the CCBE than Belarus, due to participation in other international bar associations and the presence of legislation on the bar, which is not perfect, but meets international standards of the independence of the bar much better than the Belarusian one. The Ministry of Justice does not appoint every candidate for the position of an assistant lawyer there, not to mention the advocates’ self-regulatory bodies. The Government is mentioned in Kosovo’s Law on the Bar, but only in the context of exercising the function of supervising the legality of the basic acts of the Kosovo Bar (KB); it is separately emphasized that such supervision is limited to compliance with the law and legislation, without violating administrative autonomy of the KB. The law prescribes the authority of the Ministry of Justice to monitor the functioning of the Bar and its working conditions, but at the same time, the Ministry of Justice is accountable to the Bar and is obliged to provide information and other data requested by it at short notice, taking into account the independence of the bar.
The KB joined the International Bar Association (IBA) back in 2009. The American Bar Association (ABA) initiative to promote the rule of law in Kosovo works in the field of legal education and civil education reform, as well as the reform of the legal profession.
International Bar Association (IBA)
In addition to numerous bar associations and unions of lawyers possessing membership in the International Bar Association (IBA), the official members are the national bars of such countries as Afghanistan (Independent Association of Afghanistan bars), Angola, Antigua and Barbuda, Argentina, Australia, Australia, Austria, Bahamas, Bangladesh, Barbados, Belgium, Bermuda, Bosnia and Herzegovina, Republika Srpska, Bulgaria, Cambodia, Canada, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Egypt, England, Estonia, Finland, France, Gambia, Georgia, Ghana, Greece, Guyana, Hong Kong, Hungary, Iceland, India, Iran (Islamic Republic of), Iraq, Ireland, Israel, Italy, Jamaica, Japan, Jordan, Kazakhstan, Kosovo, Lithuania, Malaysia, Maldives, Malta, Mongolia, Nepal, New Zealand, Nigeria, Norfolk Island, Northern Ireland, Norway, Pakistan, Paraguay, Philippines, Poland, Portugal, Romania, Russian Federation, Rwanda, Scotland, Serbia, Sierra Leone, Slovak Republic, Slovenia, South Korea, Spain, Sudan, Sweden, Switzerland, Taiwan, Thailand, Netherlands, Tunisia, Turkey, Ukraine, USA, Vietnam.
Despite the fact that the IBA includes national bars of Kazakhstan, Ukraine, Poland, Lithuania and even Russia (in the case of Ukraine, Russia and Poland – both territorial and national bars are involved), not a single Belarusian bar association is listed among the IBA members. However, you can find some statements and appeals related to Belarus on the organization's website –– those are usually devoted to the violations of the rights of Belarusian lawyers on the part of the state and the bodies of the Belarusian advocates’ self-regulatory bodies. In 2021, the IBA Prize was awarded to Belarusian lawyers; such an award is awarded annually to attorneys who have contributed to the development of human rights and the establishment of the rule of law.
Despite the fact that the IBA includes national bars of Kazakhstan, Ukraine, Poland, Lithuania and even Russia (in the case of Ukraine, Russia and Poland – both territorial and national bars are involved), not a single Belarusian bar association is listed among the IBA members. However, you can find some statements and appeals related to Belarus on the organization's website –– those are usually devoted to the violations of the rights of Belarusian lawyers on the part of the state and the bodies of the Belarusian advocates’ self-regulatory bodies. In 2021, the IBA Prize was awarded to Belarusian lawyers; such an award is awarded annually to attorneys who have contributed to the development of human rights and the establishment of the rule of law.
You can read the press release on awarding the CCBE award to Belarusian attorneys at the following link. Lawyers for Lawyers strongly supports Belarusian lawyers who have fallen under repression: in reports and statements, the organization actively expresses its position on the inadmissibility of pressure on the Belarusian bar, expresses a legal position as to the violation of the rights of Belarusian lawyers (on the human rights situation in Belarus, on the the disbarment of Dmitriy Laevski and Natalia Matskevich, on the increasing suppression of the legal profession). ABA also pays considerable attention to the situation with the Belarusian bar, regularly issues reports on violations of the rights of Belarusian lawyers and statements about the inadmissibility of pressure on lawyers in connection with their professional activities:
- Lawyers Under Threat - Increasing Suppression of the Legal Profession in Belarus.
- Preliminary Report on the Disbarment of Alexander Pylchenko.
- Analysis of Arbitrary Disbarments of Liudmila Kazak, Konstantin Mikhel, Maxim Konon, and Mikhail Kirilyuk.
- ABA Center for Human Rights, other legal groups denounce attacks on the Belarus legal profession.
- Statement of Patricia Lee Refo, president, American Bar Association Re: Independence of legal profession in Belarus.
Everything is known in comparison – the experience of Ukraine, Kazakhstan, Moldova
Speaking of the attorneys in the post-Soviet space. The bar offices of Kazakhstan, Ukraine, and Moldova share baselines with Belarus –– but if we look at them now, we will see a completely different and quite unusual picture. Instead of widespread state control, the principle of independence of the legal profession is being realized here. Recall at least March of 2014 in Kiev, when lawyers blocked the movement of a police van, in which the president of the Association of Lawyers of Ukraine Denis Bugai was transported at that time –– the legal community considered the detention to be an illegal interference in the activities of a lawyer, and various Ukrainian legal organizations have made statements about the inadmissibility of such actions and decisions on the part state bodies and the court.
A year ago, the project “Right to Defense” interviewed a well-known Kazakh lawyer, who worked for more than 10 years in the presidium of the Almaty Bar Association, partner of the CICERO PARTNERS law firm Daniyar Kanafin. Based on the interview, it is clear that the advocates’ self-regulatory bodies are autonomous, so are disciplinary commissions –– that is, in Kazakhstan it was possible to create a system of advocate bodies that function relatively independently of the state. Apparently, the Kazakh bar is steadily moving towards the abolition of licensing of advocacy and free access to the profession. Moreover, bar offices play an important role in protecting the rights of lawyers. For instance, when the investigating authorities tried to interrogate a lawyer as a witness, the Almaty Presidium expressed its position, underlining the unacceptability of the situation. As a result, several dozen lawyers attended the trial, presenting warrants for the protection of their colleague. Thus, the city court had to admit that this summoning of a lawyer as a witness was unlawful.
We will also provide an example of the ability of Moldovan lawyers to defend their independence through a strike. In June 2021, a norm appeared in the legislation of Moldova, according to which a lawyer cannot be summoned, arrested, detained, searched without the prior consent of the Council of the Union of Lawyers – with the exception of “situations of an obvious crime”. Amendments to the legislation removed these guarantees. Therefore, in protest, the lawyers put a white ribbon on their sleeve and announced that if the amendment was not withdrawn, not a single lawyer in the country would come to work. The lawyers were supported both by their clients, who came to court and asked to postpone their cases due to the strike, and by the judges, who expressed delight at the lawyer's solidarity. Moreover, this initiative was proposed at the level of the Moldovan Union of Lawyers. Unfortunately, Belarusian bar offices and professional associations are not yet capable of such steps due to their total subjugation to the Ministry of Justice, and, accordingly, the state.
A year ago, the project “Right to Defense” interviewed a well-known Kazakh lawyer, who worked for more than 10 years in the presidium of the Almaty Bar Association, partner of the CICERO PARTNERS law firm Daniyar Kanafin. Based on the interview, it is clear that the advocates’ self-regulatory bodies are autonomous, so are disciplinary commissions –– that is, in Kazakhstan it was possible to create a system of advocate bodies that function relatively independently of the state. Apparently, the Kazakh bar is steadily moving towards the abolition of licensing of advocacy and free access to the profession. Moreover, bar offices play an important role in protecting the rights of lawyers. For instance, when the investigating authorities tried to interrogate a lawyer as a witness, the Almaty Presidium expressed its position, underlining the unacceptability of the situation. As a result, several dozen lawyers attended the trial, presenting warrants for the protection of their colleague. Thus, the city court had to admit that this summoning of a lawyer as a witness was unlawful.
We will also provide an example of the ability of Moldovan lawyers to defend their independence through a strike. In June 2021, a norm appeared in the legislation of Moldova, according to which a lawyer cannot be summoned, arrested, detained, searched without the prior consent of the Council of the Union of Lawyers – with the exception of “situations of an obvious crime”. Amendments to the legislation removed these guarantees. Therefore, in protest, the lawyers put a white ribbon on their sleeve and announced that if the amendment was not withdrawn, not a single lawyer in the country would come to work. The lawyers were supported both by their clients, who came to court and asked to postpone their cases due to the strike, and by the judges, who expressed delight at the lawyer's solidarity. Moreover, this initiative was proposed at the level of the Moldovan Union of Lawyers. Unfortunately, Belarusian bar offices and professional associations are not yet capable of such steps due to their total subjugation to the Ministry of Justice, and, accordingly, the state.
International (a really international one!) reaction to the actions of self-regulatory bodies of the Belarusian Bar
The report of the Special Rapporteur on the Independence of Judges and Lawyers entitled “Protection of lawyers against undue interference in the free and independent exercise of the legal profession” has recently been published. The report, inter alia, reflects the persecution of Belarusian lawyers. The new Law on Bar and Advocacy is described by the authors of the report as " authorizing the Government to intervene in the appointment of the heads of bar associations and their governing bodies". Sad statistics are provided: At least 27 lawyers have been disbarred or suspended for speaking out against the recent wave of crackdowns in Belarus (according to the data at the time of reporting; now this number constitutes 60 persons – editorial). These actions, the report emphasizes, directly undermine the independence of justice and prevent lawyers from freely exercising their professional functions. It is mentioned that in 2021, the Qualification Commission on Issues of Advocacy in Belarus revoked the licenses of five lawyers, allegedly for providing legal services to opposition leaders and peaceful protesters. This practice is described in the report as an attack on the free exercise of the legal profession and a disguised sanction.
In the last 2 years, the Belarusian bar represented by its self-regulatory bodies has been mentioned in the international agenda exclusively in the context of condemnation by international organizations and instances of the actions of territorial and republican bar offices. To be more precise, rather, their inaction: most recently, the International Association of Lawyers (UIA) has issued a statement regarding the persecution of Belarusian lawyers. UIA draws attention to the fact that the Belarusian National Bar Association and its regional bars not only have failed to fulfill their function of protecting their members from persecution, unjustified interference, and improper restrictions, but they instead appear to have enabled these arbitrary procedures as a result of their lack of independence and the extensive control that the Belarussian Minister of Justice has over the legal profession, including the amendments to the legislation on the advocacy.
The thing is, the Qualification Commission under the Ministry of Justice consistently conducts the recertification of lawyers –– both planned and unplanned –– as a result of which “undesirable” lawyers defending clients in high-profile politically motivated cases, covering the process in the press or expressing their civic position publicly are deprived of the right to a profession. The disciplinary procedure is also used as a ground for disbarment, so that now it has become easier for the bar offices to do this, since after the introduction of the amendments to the legislation on the bar, disciplinary commissions elected by the lawyers themselves have ceased to exist, and the powers to review disciplinary proceedings against lawyers have passed to the Boards of bar offices, which are totally controlled by the Ministry of Justice, and to the BNBA Council.
In fact, the transfer of disciplinary powers to the Ministry of Justice is not the only change designed to strengthen state influence and pressure in the legal community. Simplified procedure for admission to the profession of former judges, prosecutors, law enforcement officers, simplification of entry into the profession by excluding mandatory work experience, liquidation of law firms and individual lawyers practice, full transition to state legal advice offices, strengthening of control of the Ministry of Justice in the field of personnel, management of legal advice offices, introduction of new Rules of professional ethics, advocates’ self-regulatory bodies –– while all this is established at the legislative level, any compliance of the Belarusian bar with international standards of the legal profession is out of the question –– so, respectively, is the expansion of international cooperation.
The government expresses by all means –– from repressive amendments to legislation to officials’ public statements –– that the legal profession in Belarus is controlled and not independent. For example, while congratulating Belarusian lawyers on the Day of the Bar, Justice Minister Sergei Khomenko uttered the following phrase: “Today the justice system is unthinkable without professional protection in criminal and civil proceedings. You [lawyers] as government men, watch over the observance of the legitimate interests of individuals and legal entities.” This statement contradicts the generally accepted standards of the work of the bar and Basic principles on the role of lawyers, which, among other things, prohibit the interference of the Ministry of Justice and the state in the activities of the bar.
In the last 2 years, the Belarusian bar represented by its self-regulatory bodies has been mentioned in the international agenda exclusively in the context of condemnation by international organizations and instances of the actions of territorial and republican bar offices. To be more precise, rather, their inaction: most recently, the International Association of Lawyers (UIA) has issued a statement regarding the persecution of Belarusian lawyers. UIA draws attention to the fact that the Belarusian National Bar Association and its regional bars not only have failed to fulfill their function of protecting their members from persecution, unjustified interference, and improper restrictions, but they instead appear to have enabled these arbitrary procedures as a result of their lack of independence and the extensive control that the Belarussian Minister of Justice has over the legal profession, including the amendments to the legislation on the advocacy.
The thing is, the Qualification Commission under the Ministry of Justice consistently conducts the recertification of lawyers –– both planned and unplanned –– as a result of which “undesirable” lawyers defending clients in high-profile politically motivated cases, covering the process in the press or expressing their civic position publicly are deprived of the right to a profession. The disciplinary procedure is also used as a ground for disbarment, so that now it has become easier for the bar offices to do this, since after the introduction of the amendments to the legislation on the bar, disciplinary commissions elected by the lawyers themselves have ceased to exist, and the powers to review disciplinary proceedings against lawyers have passed to the Boards of bar offices, which are totally controlled by the Ministry of Justice, and to the BNBA Council.
In fact, the transfer of disciplinary powers to the Ministry of Justice is not the only change designed to strengthen state influence and pressure in the legal community. Simplified procedure for admission to the profession of former judges, prosecutors, law enforcement officers, simplification of entry into the profession by excluding mandatory work experience, liquidation of law firms and individual lawyers practice, full transition to state legal advice offices, strengthening of control of the Ministry of Justice in the field of personnel, management of legal advice offices, introduction of new Rules of professional ethics, advocates’ self-regulatory bodies –– while all this is established at the legislative level, any compliance of the Belarusian bar with international standards of the legal profession is out of the question –– so, respectively, is the expansion of international cooperation.
The government expresses by all means –– from repressive amendments to legislation to officials’ public statements –– that the legal profession in Belarus is controlled and not independent. For example, while congratulating Belarusian lawyers on the Day of the Bar, Justice Minister Sergei Khomenko uttered the following phrase: “Today the justice system is unthinkable without professional protection in criminal and civil proceedings. You [lawyers] as government men, watch over the observance of the legitimate interests of individuals and legal entities.” This statement contradicts the generally accepted standards of the work of the bar and Basic principles on the role of lawyers, which, among other things, prohibit the interference of the Ministry of Justice and the state in the activities of the bar.
Conclusions
Given the current situation, that is, full control over the advocates’ self-regulatory bodies, approval of candidates for the role of lawyers by the Ministry of Justice, attorneys being in custody for diligent professional activities, active participation of advocates’ self-regulatory bodies in crackdowns against lawyers, the enhancement of international cooperation between the BNBA, bar associations of developed countries and international bar associations until the reform of the legal field seems unpromising –– or the vector of such cooperation is to be directed at the most odious and totalitarian regimes.
